1,576 days and counting

James Glassman reminds us that it has been almost 1,600 days without an attack on American soil, here. This is due not to luck but to practices like the controversial electronic eavesdropping program. Former New York mayor Ed Koch (D) weighs in here and says that the program is sufficiently subjected to oversight and controls. In fact, it was once suspended and refined under former Attorney General John Ashcroft to better respond to privacy considerations:

Over a year ago, a Times reporter told his editors that the National Security Agency -- whose responsibility it is to electronically monitor security-related phone conversations -- was doing so without the authorization of the Foreign Intelligence Surveillance Act (FISA) court. This court was specifically created to review NSA requests to surveil telephone calls and e-mails coming from overseas or initiated in the U.S. where one of the participants is a person known to the government to be affiliated with terrorism.

Ordinarily, telephone taps of domestic calls are only permitted by regular court order based on a showing of probable cause of criminal activity sufficient to meet the requirements of the Fourth Amendment. However, the NSA is subject to a more relaxed standard. It merely needs to show the FISA court that one of the participants in an overseas call is associated with terrorism.

Since the NSA’s surveillance program commenced in October 2001, the FISA court has denied surveillance authorization in few instances. On December 27, 2005, the Times reported, “From 1995 to 2004, the court received 10,617 warrant applications, according to figures compiled by the Federation of American Scientists. It turned down only four, all in 2003 for unexplained reasons.” Nevertheless, the administration has generally refrained from seeking FISA court approvals. The administration has stated that it believes, based on the advice of career lawyers in the Department of Justice and Attorney General’s office, that the President does not need a court order to direct the NSA to intercept overseas calls since 9/11, after which Congress authorized war against international terrorism.

Further, the administration believes, notwithstanding the ease with which court orders are granted and the fact that retroactive court orders and 72 hours emergency surveillance without a court order are permitted, that it has and should have the right to proceed in these cases without a court order.

The administration says it monitors the surveillance program carefully and reauthorizes it every 45 days. On one occasion in March 2004, while Attorney General John Ashcroft was in the hospital, the administration was told by Ashcroft’s Deputy, James B. Comey, that he would not recertify the program.

The Times describes the situation as follows: “Officials with knowledge of the events said that Mr. Ashcroft also appeared reluctant to sign on to the continued use of the program, and that the Justice Department’s concerns appear to have led in part to the suspension of the program for several months. After a secret audit, new protocols were put in place at the N.S.A. to better determine how the agency established the targets of its eavesdropping operations, officials have said.”

Comey has since left the government and one of the FISA judges, James Robertson, who apparently had some disagreements with the actions of the FISA court, resigned from it in December 2005. On January 2, 2006, the Times quoted President Bush as saying, “Not only has it been reviewed by Justice Department officials, it’s been reviewed by members of the United States Congress…It’s a vital, necessary program.”

Meanwhile, Debra Saunders of the San Francisco Chronicle evaluates the politics of the controversy:

(a)ngry leftists are so hysterical that they cannot distinguish between government agents eavesdropping on a president's political enemies, and the data mining of international phone calls in an earnest effort to thwart another Sept. 11 terrorist attack. They don't see that Bush, rather then trying to hide his role in the effort, signed off on the program more than 30 times.

Warrantless wiretaps? Victoria Toensing, a former deputy assistant attorney general in the Reagan administration, called CNN recently to note that the Clinton administration authorized the warrantless search of the house of CIA employee Aldrich Ames.

But the Dems didn't talk of impeachment then.

Clearly, the fact that there has been no attack on American soil since 9/11 shows that the domestic tactics and strategy advocated by hawks, on both sides of the aisle, has kept people safe. I certainly don't lose sleep at night worrying about whether or not civil liberties are being infringed.